Thoughts of an activist lawyer

The divide on freedom of expression

An interesting development in media law is the widening gap between American and European jurisdiction on three areas of freedom of expression: privacy, hate speech and liabilities for Internet service providers.

On the issue of privacy, American jurisprudence insists that public persons, or celebrities, have given the public a right to inquire even into their private lives. The Europeans, on the other hand, insist that celebrities such as Princess Caroline of Monaco and supermodel Naomi Campbell are entitled to some sort of privacy, particularly where aspects of their private lives do not contribute to any debate on public issues.

On hate speech, American jurisdiction, adopted by us, maintains that because of the primacy that we have accorded to freedom of expression, the only limitation on free speech is where there is a clear and present danger that the state has a right to prevent. European jurisprudence, on the other hand, has been less tolerant of hate speech. In Wingrove vs. UK, the European Court upheld a decision of a local court to order the removal of an anti-Muslim tarpaulin. In another case, Otto-Preminger Institute v. Austria, the same human rights court banned the showing of a film that appeared to be anti-Christian although it allowed the public reading of its script. In both cases, the European Court of Human Rights did not use the clear and present test. Instead, it opted for a less strict test, the so-called three-pronged test, that is, speech may be infringed on if there is a law, if it has a legitimate governmental purpose, and if it is proportional to the purpose sought to be promoted.

The third area of divergence is on whether Internet Service Providers should incur liability for matters “published” on their sites. The Americans, maybe because almost all ISPs are based in the US, want full immunity, while Europe, and apparently the rest of the world -as evidenced by the “Manila Declaration”, opt for conditional liability. This means ISPs should have liability if they have notice of illegality of their content and they failed to remove it.

There does not appear to be an end to the increasing divergence between the continent and the new world. Of late, the United States opted for the rule on “net neutrality”, or the rule that content providers should not be allowed to pay for faster access to the Internet. There is no such zeal in defending this neutrality in Europe.

While these divergences are indeed healthy as indicative of diversity in views, what is worries me is that these European jurisprudence may be invoked by despots to limit the scope of freedom of expression. To illustrate, European countries, when they were negotiating the Genocide Convention, succeeded in criminalizing the mere incitement to genocide arguing that in order to prevent genocide, the international community should already prohibit mere incitement. To wait for an actual genocide to happen would be too late.

The US disagreed and said that only incitements, where clear and present danger could arise, should be prohibited.

An ordinary person inciting the mass destruction of people should not be penalized for the mere utterance of the words. But if members of armed security forces or an armed group uttered the same words, then it could be prohibited and penalized. The rationale is freedom of expression protects, precisely, unpopular speech. This, in turn is premised on the assumption that all speech forms part of the free marketplace of ideas that people turn to discern the truth and form their opinions.

Conceivably, authoritarian regimes may penalize incitement to terrorism, even absent a definition, in the same manner that incitement to genocide was provided in the convention. If these regime were to do this, only despots can define what terrorism is and the criminalization of both incitement and acts of terrorism may be used to curtail civil and political rights.

A consequence of the divergence in the area of hate speech is the nature of the prohibition. The three-pronged test of the Europeans appears to prohibit hate speech as if they were in the nature of malum prohibitum, or that mere utterances of hate speech should be penalized. The danger here of course is if liability is based solely on the utterances made, then people may not speak freely about their thoughts, which would then limit what we seek to have: a robust and free discussion of issues.

The saving grace appears to be in the test of proportionality applied by the Europeans. While they tend to legitimize prior subsequent punishment, the penalties imposed range only from fines to suspension of the right to practice journalism as a profession. Under no circumstance has the European Court of Human Rights sanctioned a subsequent punishment in the form of imprisonment. This is still confirmation that the Europeans still value freedom of expression as it has not deemed incarceration as a proportional means to promote racial harmony.

Where do we go from here? The Philippines has been faithfully adhering to American jurisprudence, and for good reason. If the Americans were able to persuade us to adopt their jurisprudence on freedom of expression, perhaps it can convince other jurisdictions, including the European Court, to do so. Lets hope so.

This post first appeared in http://manilastandardtoday.com/2015/05/07/the-divide-on-freedom-of-expression/